Ahmet v Chief Commissioner of Police
[2014] VSCA 265
•24 October 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2014 0093 | |
| BARIYOW AHMET | Applicant |
| v | |
| CHIEF COMMISSIONER OF POLICE | Respondent |
---
| JUDGES: | NETTLE JA and SLOSS AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 October 2014 |
| DATE OF JUDGMENT: | 24 October 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 265 |
| JUDGMENT APPEALED FROM: | Ahmet v State of Victoria & Ors (Ruling) [2014] VCC 922 (Judge Misso) |
---
PRACTICE AND PROCEDURE – Subpoena – Claim for public interest immunity – Production and inspection objected to – Balancing of claim for public interest immunity against the public interest in the administration of justice – Whether judge below erred in failing to inspect the documents.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr K McDonald | Flemington & Kensington Community Legal Centre |
| For the Respondent | Mr S A O’Meara QC with Mr L T Brown | Victorian Government Solicitor’s Office |
NETTLE JA
SLOSS AJA:
The applicant, Bariyow Ahmet, initiated proceedings in the County Court against the State of Victoria and four individual members of Victoria Police alleging that they assaulted him on two occasions whilst arresting him in October 2004. The applicant further claims that he was falsely imprisoned, battered and maliciously prosecuted. The applicant served a subpoena dated 28 March 2013 (but issued on 28 March 2014) seeking production of complaint and investigation records held by the Chief Commissioner of Police concerning the four police officers, none of whom are a party to this application.[1]
[1] The police officers also requested that subpoenas be issued to the proper officer at a medical centre the applicant had attended for medical treatment, the proper officer of Corrections Victoria seeking production the Melbourne Custody Centre and prison records pertaining to the applicant and to the Chief Commissioner of Police seeking the production of specified records and documents pertaining to the applicant.
The Chief Commissioner opposed the subpoena. Under cover of objection, the Chief Commissioner ‘produced’ 18 files by way of response to the subpoena.[2] Six files related to Leading Senior Constable Mark Robertson (the second defendant)[3] and 12 files related to Acting Sergeant Nick Konstantinidis (the third defendant).[4] The Chief Commissioner objected to the production and inspection of the documents on two separate and distinct bases. First, he contended that the documents sought have no legitimate forensic purpose. It was submitted that the subpoena seeks files which are wholly unrelated to the subject matter of the proceeding and are incapable of providing any, or any sufficient, assistance to the applicant’s case. Secondly, he claimed that the documents sought are subject to public interest immunity pursuant to s 130(1) of the Evidence Act 2008 and ought not be disclosed because the balance of the public interest favours non-disclosure.
[2]The documents sought by the subpoena were in ‘two very large suitcases’ produced to the Court. His Honour said he would ‘like to hear what [counsel] has to say before I dive into the suitcases’ at Transcript of Proceedings, 13 June 2014 (Judge Misso), 77.25-78.13, Exhibit ‘SCE-2’ to the first affidavit of Sophie Catherine Ellis affirmed 11 August 2014.
[3]For the 6 files, the outcome of the complaints were recorded as follows:
· ‘not substantiated’ — in the case of 5 files.
· ‘resolved with complainant’s assistance’ — in the case of 1 file.
The expression ‘not substantiated’ is defined in the Discipline Investigation Manual at [108] (Exhibit ‘NEH-5’ to the affidavit of Sergeant Harrison) as meaning ‘the weight of available evidence does not support the account of events as described by the complainant, but is weighted in favour of the account given by the police members.’
[4]For the 12 files, the outcome of the complaints were recorded as follows:
· ‘not substantiated’ — in the case of 9 files.
· ‘withdrawn/not substantiated’ — in the case of 1 file.
· ‘unsubstantiated’ — in the case of 1 file.
· ‘not substantiated/unfounded’— in the case of 1 file.
The expressions ‘withdrawn’ and ‘unfounded’ are defined in the Discipline Investigation Manual at [108] (Exhibit ‘NEH-5’ to the affidavit of Sergeant Harrison) as follows:
‘withdrawn’ means that ‘a complainant having made a formal complaint then makes a written request that the complaint investigation cease.’
‘unfounded’ means ‘the available evidence clearly establishes that there are no grounds for the complaint whatsoever.’
The matter was heard by Judge Misso on 13 June 2014. On 25 June 2014, his Honour published his ruling.[5] He concluded that the evidence before him demonstrated that the public interest in preserving confidentiality outweighed the public interest in permitting disclosure of the documents. His Honour made orders which relevantly set aside the applicant’s subpoena (order 8) and ordered the applicant to pay the Chief Commissioner’s costs, and that there be a stay of execution until further order (order 10).
[5][2014] VCC 922.
By summons dated 28 July 2014, the applicant seeks an extension of time and leave to appeal orders 8 and 10.[6] The applicant requested that the Court hear his application for leave separately and ahead of his appeal, should leave be granted. On 8 October 2014, however, the President of the Court of Appeal determined, pursuant to s 11(4) of the Supreme Court Act1986, that two Judges of Appeal constitute and may exercise all the jurisdiction and powers of the Court of Appeal. The Court, as constituted, determined to hear both the application for leave and the appeal, should leave be granted, together.
[6]He no longer seeks a protective costs order pursuant to s 65C(2)(d) of the Civil Procedure Act 2010.
Extension of time
Under r 64.20(1) Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) this Court has a discretion to extend time. While the exercise of the discretion is unfettered, the factors relevant to the exercise of discretion under r 64.20 include the reasons for the extent of the delay, the existence of an arguable case or realistic prospects of success on appeal and the extent of prejudice to the respondent if an extension were granted.[7]
[7]See Phillips v Australian Finance and Leasing Ltd [2009] VSCA 256, [4] (Dodds-Streeton JA and Byrne AJA).
The applicant did not file any affidavit evidence explaining the reasons for his delay in seeking leave to appeal, nor did he address the matter in his written outline of submissions filed in advance of the hearing. In these circumstances, the Chief Commissioner submits that the application should be refused. At the hearing, counsel for the applicant proffered an explanation for the delay and undertook to have his instructing solicitor file an affidavit. Subsequently, an affidavit of Sophie Catherine Ellis affirmed on 10 October 2014 was filed. In essence, Ms Ellis deposes that the delay in bringing the application was due to the late delivery of the transcript of the proceedings before Judge Misso on 13 June and 25 June 2014.
The Chief Commissioner has not identified any obvious prejudice that would result if an extension of time were granted. In those circumstances, if the Court were otherwise satisfied that there is an arguable case with realistic prospects of success on appeal, we would grant the extension of time sought.
Application for leave to appeal
As the applicant seeks to appeal orders that were made by Judge Misso on an interlocutory application, leave to appeal is required pursuant to s 74(2D) of the County Court Act 1958.[8]A decision to uphold, or reject, a claim of public interest
immunity is not, however, an exercise of discretion requiring error of the kind identified in House v R[9] to be shown.[10]
[8]An application to set aside a subpoena was described as an interlocutory application in Attorney-General (Vic) v Lupco Slaveski [2013] VSC 319.
[9](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ).
[10]State of Victoria v Brazel (2008) 19 VR 553, 565–566 [38]–[39]; ASIC v P Dawson Nominees Pty Ltd (2008) 247 ALR 646, 650–651 [16]–[21].
The Chief Commissioner submits that, due to considerations of fair and efficient administration of justice, an applicant seeking leave to appeal an interlocutory order on a matter of practice and procedure must jump a high hurdle.[11] The relevant principles, drawn from Niemann v Electronic Industries Ltd,[12] are well-established. On an application for leave pursuant to s 74(2D), leave to appeal should only be granted where the decision below was wrong, or at least attended with sufficient doubt to justify granting leave and, in addition, substantial injustice would be done if the order was allowed to stand.
[11]Bailey v Farrow Mortgage Services Pty Ltd (in liq) (Unreported, 23 August 1994, SCVAD Ormiston and Coldrey JJ) cited with approval in Regent Holdings Pty Ltd v State of Victoria (2012) 36 VR 424, 426 [7] (Nettle, Redlich and Osborn JJA).
[12][1978] VR 431, 441–2.
At the hearing before Judge Misso, counsel for the applicant outlined the forensic purpose for which the subpoenaed documents were sought. He submitted that the documents are relevant to demonstrate a tendency on the part of the police members to act in a particular way and that their conduct is not coincidence.[13] He said that the applicant intends to challenge the credibility of the four police officers, and to argue before a jury that coincidence reasoning can properly permit the finding that some or all of the defendants have the tendency to engage in behaviour of the type alleged in the pleading.
[13]The coincidence rule is referred to in s 98(1) of the Evidence Act 2008.
His Honour found (at [55] of his reasons) that, were it not for the claim that the documents are protected by public interest immunity, he would be inclined to permit inspection. On the question of relevance, he referred to the earlier findings he made about the other subpoenas issued at the request of the second to fifth defendants. In essence, his Honour had found that the test of relevance is a general one and that he should not be unduly astute in rejecting the possibility that the documents do not meet the test of relevance.
His Honour then proceeded to deal with the claim for immunity. In his reasons (at [56] to [62]), his Honour stated the correct statutory test and referred to relevant authority concerning the application of the test. He also summarised the key aspects of the evidence relied on by the Chief Commissioner, given by Ms Nadine Elise Harrison, a Sergeant of Police with the Disciplinary Advisory Unit of the Professional Standard Command, in an affidavit sworn on 12 June 2014. In her affidavit, Sergeant Harrison described the policy underlying non-disclosure and the likely impact that disclosure of the documents sought would have, as follows:
41Public disclosure of PSC [Professional Standard Command] files will reveal investigative methods utilised by IBAC and PSC and methods of intelligence gathering. Such disclosure would tend to alert persons of interest to the investigative methods employed by the PSC and/or IBAC.
42.Disclosure of PSC files may also reveal information obtained by compulsory IBAC or PSC processes or confidential communications passing between the PSC and IBAC. In some cases, there is discussion between IBAC (or, in earlier years, the Ombudsman) and PSC regarding the preferable way to approach or regard a complaint. Disclosure may impede the free and frank exchange of information between these organisations, which would consequently undermine the effective performance of their respective investigative functions.
43.Public disclosure of PSC files may prejudice the fearless and thorough investigation of police complaints. It is usual for those who are investigating complaints to be very frank in their assessment of evidence and to make strong comments on the strength of evidence or the veracity of witnesses. This is an important part of the process and it occurs in an atmosphere of complete confidentiality where in many cases the complainant and the subject member will not see the views or comments of the investigators in full but rather will only see the summary which is sent to them. Public disclosure of opinions, advice and recommendations of PSC officers to their superior, and vice versa, tends to negatively impact on the free and frank exchange of information and opinions between senior police officers in respect of police complaints.
44. The files falling within the scope of the Subpoena:
44.1 do not relate to the same period as the plaintiff’s claim; and/or
44.2relate to allegations which were found to be unfounded, not substantiated or otherwise unproven; and/or
44.3.contain personal information received in confidence about a large number of persons other than the named police members; and/or
44.4contain extensive details of deliberations and assessments by investigating officers, much of which will not have been made known to either the members concerned or the complainants and which was intended only for senior command within Victoria Police.
45.The release of those files would prejudice the ability of Victoria Police to properly receive and investigate complaints against police members because:
45.1it would disclose details of investigative processes used by PSC;
45.2it would inhibit the open exchange of information and views within Victoria Police which is essential to the proper functioning of the investigative and disciplinary processes; and
45.3it would reduce the willingness of complainants and members to participate in such processes.
His Honour did not inspect the documents. Rather, he determined the matter on the basis of Sergeant Harrison’s evidence, which he found to be ‘compelling’. His Honour stated (at [63]):
It is directly relevant to the receipt of complaints by the PSC relevant to the Police members and its dealing with those complaints. I consider that the evidence demonstrates that the public interest in preserving confidentiality outweighs the public interest in permitting disclosure of the documents.
The applicant now seeks leave to challenge the conclusion reached by his Honour. The applicant’s proposed notice of appeal alleges the following errors of law as justifying the grant of leave:
Grounds of appeal
1.His Honour erred in law in finding that the documents sought by the Appellant were either of a class or content that conferred public interest immunity upon those documents.
2.Further or alternatively, his Honour’s finding was not open to him where the Respondent’s contentions were merely speculative and not expressed in imperative or indicative terms with respect to the actual documents sought by the Applicant.
3.Further or alternatively, his Honour’s finding was not one open to him where the Respondent’s objections were to the release of documents not actually the subject of the subpoena actually issued by the Applicant.
4.Further or alternatively, his Honour’s finding was infected by error in misapprehending that the Professional Standards Command (PSC) is a separate investigative body that might pass on personal details of complainants about police misconduct, when in fact it is a division of Victoria Police.
5.Further or alternatively, after having satisfied himself the documents sought might assist the plaintiff, his Honour erred at law in failing to inspect the documents himself to ascertain if PII [public interest immunity] applied to them.
6.Further or alternatively, his Honour failed to weigh or balance the competing interests between the public interest in keeping the subpoenaed documents confidential and in allowing their admission in evidence.
The errors contended for in proposed grounds 1, 2, 3, 5 and 6
It is convenient to address the thrust of the applicant’s case as reflected in grounds 1, 2, 3, 5 and 6 above. Those grounds are complementary and together amount to a submission of the kind recorded in ground 6, namely that his Honour failed to weigh or balance the competing interests between the public interest in keeping the subpoenaed documents confidential and the public interest in the proper administration of justice.
The applicant contends that the subpoena issued at his request sought two types of documents. The first concerned any complaints made against the second to fifth defendants but only on the subject matter of assault, false imprisonment or excessive use of force carried out whilst on duty. Where there were such complaints, the subpoena specifically sought production of only the complaint itself, and the outcome of the complaint. The second category concerned certain disciplinary investigations and determinations that might have occurred concerning the second to fifth defendants. The applicant’s subpoena sought documents relating to circumstances where the Chief Commissioner or an authorised officer:
(a)reasonably believed the second to fifth defendants may have committed a breach of discipline, in accordance with s 70(1) of the Police Regulation Act 1958 (Vic) (‘the Act’);[14] and
(b)reasonably believed the defendants had committed a breach of discipline and so charged the defendants, in accordance with s 71; and
(c)inquired into and thereafter determined such a charge pursuant to s 73.
[14]The Police Regulation Act 1958 was re-titled the Police Regulations (Pensions) Act 1958 by s 278 of the Victoria Police Act2013 with effect from 1 July 2014. The Act was largely repealed by the Victoria Police Act2013, which commenced on 1 July 2014. Part 7 of the Victoria Police Act now governs police discipline and replicates in substantive terms Part IV, Divisions 1–3 of the Police Regulation Act (ss 69–81).
Section 69 of the Act specified what constituted breaches of discipline. The breaches of discipline relevantly sought by the subpoena were:
(1)engaging in conduct likely to bring the force into disrepute or diminish public confidence in it;
(2)disgraceful or improper conduct;
(3)negligent or careless discharge of duty;
(4)acting in a manner prejudicial to the good order or discipline of the force; or
(5)where the defendant was charged with an offence and the offence was found proven.
The applicant submits that its subpoena for the second category of documents was severable, seeking all disciplinary determinations against the defendants, and more specifically, all disciplinary determinations for the five enumerated categories.
The applicant contends that the majority of the objections raised by the Chief Commissioner to the subpoena actually had nothing to do with the documents that were subject to the subpoena, as opposed to the position that might have applied in other cases involving subpoenas expressed in more broad and general terms. The applicant submits that this led his Honour into error. He says that none of the objections raised by the Chief Commissioner, based on Sergeant Harrison’s affidavit, asserted that the documents sought by the applicant’s subpoena actually contained material subject to either ‘content’ or ‘class’ immunity. Rather, the objections ‘referred to policy concerns couched in subjective and subjunctive terms’. The applicant submits that, in the present case, there is nothing to suggest that any relevant complaint investigation was anything other than a ‘routine’ police investigation, involving a complainant’s statement, the interviewing of witnesses and collecting of relevant evidence and then interviewing the subject of the complaint.
The classification of public interest immunity claims as ‘class’ claims and ‘contents’ claims is recognised as a ‘rough but accepted’ division.[15] In Commonwealth v Northern Land Council the High Court said the classification:
[15]Burmah Oil Co Ltd v Bank of England [1980] AC 1090, 1111 (Lord Wilberforce).
serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents.[16]
Their Honours went on, however, to emphasise that whatever might have been the position in the past, since Sankey v Whitlam,[17] even where documents fall within a class in respect of which there are strong public policy considerations militating against disclosure, ‘the immunity from disclosure of documents falling within such a class is not absolute.’[18] Further, their Honours said:
The claim of public interest immunity must nonetheless be weighed against the competing public interest of the proper administration of justice, which may be impaired by the denial to the court of access to relevant and otherwise admissible evidence.[19]
[16](1993) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).
[17](1978) 142 CLR 1.
[18](1993) 176 CLR 604, 616 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ).
[19]Ibid.
It is clear that documents which relate to the investigation of police misconduct or complaints against police do not, as a class, attract public interest immunity: R v Chief Constable of the West Midlands Police; Ex parte Wiley.[20] See also R v Polley.[21]
[20][1995] 1 AC 274.
[21](1997) 68 SASR 227, 245 (Mullighan J with whom Nyland J concurred).
In those circumstances, only a ‘contents’ claim could be pursued in the present case. That required the Chief Commissioner to identify with some particularity the basis for his contention that the disclosure of the information contained in the subpoenaed documents would harm some aspect of the public interest. In State of Victoria v Brazel, the Court of Appeal said:
The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.[22]
[22](2008) 19 VR 553, 574–575 [68].
At the hearing before Judge Misso, the applicant did not challenge Sergeant Harrison’s evidence by cross-examination. Rather, the thrust of the arguments advanced by the applicant were to the effect that, for various reasons, his Honour should not be satisfied by the evidence of Sergeant Harrison. Before this Court, the Chief Commissioner contends that the applicant did not submit below that it was not open to his Honour to accept the evidence of Sergeant Harrison.[23] The Chief Commissioner says that the applicant effectively conceded that if his Honour were satisfied by Sergeant Harrison’s evidence, he need not inspect the underlying documents.
[23]In this regard, reference was made to Attorney-General for NSW v Stuart (1994) 34 NSWLR 667, 681.
In our view, when the relevant passage in the transcript of the hearing before Judge Misso is considered, that submission appears to overstate the position. Counsel for the applicant dealt generally with ‘class’ claims and ‘contents’ claims and then, in respect of the latter, said –
the only way the public interest immunity might arise is if the content of them is such that they ought to be conferred that status of public interest immunity.
So that’s where the requirement to then consider and look at the contents arises. And that obviously requires — well, I was going to say that obviously requires an inspection by the court. But that wouldn’t always be the case.
If your Honour had an affidavit setting out, ‘These documents contain the following information, details of registered informers whose life might be placed in risk if their details, who they are, were disclosed’, Your Honour would be able to say, ‘Well, I don’t need to see that unless I have some reason to doubt the accuracy of what I’m told. I have evidence that the content of that document ought to bestow public interest immunity.’
But Your Honour doesn’t have that form of assertion in the affidavit before you today.
A little later, in the context of responding to a question from his Honour about how any ‘content’ claim for public interest immunity should be handled, counsel for the applicant gave the following response:
HIS HONOUR: … So in a practical fashion, which is what I’m rather more concerned about — I understand the submissions you’re putting — in a practical fashion how does one do this?
MR McDONALD: Your Honour is saying, ‘How do I know if these documents have that content or not?’. And, in my submission, the answer is by looking at what Your Honour has before you, so the affidavit that makes assertions or claims for any public interest. And if Your Honour is not satisfied on that information, by then considering the documents themselves and they will then either flag yes, some or all of it is indeed subject to the immunity or it’s not.
But the real way this unfolds when a party comes before the court and says we contend this is subject to immunity is that the party who holds the documents and know their contents is best placed to inform the court about why they say that immunity is earned or should be bestowed upon these documents. And if the court says, ‘Well, on what you’ve provided me so far responding to the subpoena I’m not satisfied’, then the question is either do they go away and provide additional evidence to the court to so satisfy it or does the court make the enquiry itself.
In my submission, the appropriate course would be, particularly in a case like this, to make the enquiry itself.[24]
[24]Transcript 118.06–119.01. See also 121.15–121.18 where counsel for the applicant said ‘short of examining the documents it seems difficult to understand how else you might do that’.
In the present case, the claim for public interest immunity was framed in general terms. Counsel for the applicant described the claim as ‘broad assertions that these files might contain various confidential information or private information or people might not wish their details disclosed.’[25] The extracts from Sergeant Harrison’s affidavit set out above serve to demonstrate that the statements she makes about the alleged impact of the release of the PSC files and the disciplinary process files do not identify, or articulate in any real or meaningful way, what it is about the contents of those files that, if disclosed in the current proceeding, would harm the public interest in some way. In other words, the statements made in the affidavit and relied upon by the Chief Commissioner are presented at a level of generality which prevents any real assessment of their strength.
[25]Ibid 117.10–13.
In State of Victoria v Brazel this Court emphasised that the decision to be made on a claim for public interest immunity will depend upon the circumstances in which the claim is made. The Court said:
Everything turns on the character of the particular information in issue and the nature of the particular litigation (or administrative investigation) in which the occasion for disclosure of the information arises. Before embarking on the balancing exercise, the court must assess the strength of the arguments for non-disclosure and disclosure respectively. The court must scrutinise carefully what is said to be the potential damage to the public interest if the information is disclosed and, equally, what is said to be the significance of the information in the litigation.[26]
[26](2008) 19 VR 553, 568 [47].
In our view, his Honour erred in acting on the basis of the general statements made by Sergeant Harrison, rather than by inspecting the subpoenaed documents for himself and forming a view about whether any damage might result from disclosure. In the absence of his Honour having a good appreciation of the substance of the information that the Chief Commissioner contends is ‘sensitive’ in the public interest and the potential damage that would likely result if it were disclosed in the context of the litigation, no proper weighing of the merits of the competing claims could be undertaken.
Senior counsel for the Chief Commissioner contended that Sergeant Harrison’s affidavit dealt with the very documents requested. But when pressed as to what it was about those documents that was contended to be ‘sensitive’ in the public interest, such that damage would likely result if it were disclosed in the context of the litigation, he stated that it was the names of the complainants. In her affidavit, Sergeant Harrison states:
23.The assurance of confidentiality to complainants and witnesses is essential for the free flow of information from complainants and witnesses to PSC. Often police witnesses will be colleagues of the member who is the subject of the complaint. Disclosure of statements in civil proceedings such as these would prejudice witness candour and hinder the investigator in the discharge of his or her public duties.
…
34.Where a complaint is found to be unfounded or not substantiated, the member concerned is usually regarded as being exonerated in relation to the complaint.
…
37.When a complaint is not made out (for example, it is determined to be not substantiated or unfounded) the complainant is also notified of this outcome and of their statutory right to make a complaint to IBAC.
Further, in Exhibit ‘NEH-3’ to her affidavit, she reproduces the ‘statement preamble’ that appears in the extract from the Discipline Investigation Manual, as follows:
21.Complainant and witness statements must commence with the following wording:
I make this statement in confidence and I do not wish its contents disclosed to any person without my permission except for the purposes of an investigation by or on behalf of the Victorian Police Ethical Standards department, court proceedings or police disciplinary proceedings.
…
I acknowledge that my statement may be subject to a Freedom of Information application or to a subpoena in any court proceedings. …
Counsel for the applicant responded by pointing out that Sergeant Harrison fails to deal with the position as it applies to the specific complainants who have made the relevant complaints against the second to fifth defendants. Indeed, he said that in cases where the outcome of the majority of the complaints made were ‘not substantiated’, the particular complainants, or some of them, may very well welcome the opportunity to ventilate their complaint publicly.
In the absence of knowing what information is contained in the complaint files, it is difficult to see how his Honour could have undertaken any real balancing of the competing public interests. In our view, where the claim for immunity is a ‘contents’ claim, that exercise will normally require the judge to inspect the documents for the purpose of making a decision on whether or not the claim is made out.[27]
[27]See Woolworths Ltd v Svajcer [2013] VSCA 270, [43] (Nettle, Ashley and Neave JJA). In State of Victoria v Brazel, the Court of Appeal inspected the documents for themselves: (2008) 19 VR 553, [46].
In those circumstances, we are satisfied that the decision below is attended with sufficient doubt to warrant it being reconsidered on appeal. We would allow the application for leave, treat the appeal as instituted and heard instanter and remit the matter to his Honour for re-consideration.
The error contended for in proposed ground 4
For completeness, we should also record our views on the error contended for in ground 4, that his Honour’s finding was infected by error in misapprehending that the PSC is a separate investigative body that might pass on personal details of complaints about police misconduct, when in fact it is a division of Victoria Police. The applicant contends that the PSC is not an ‘investigative body’, but rather is simply an internal department of Victoria Police. The applicant maintains that his Honour fell into error in determining the claim for public interest immunity as if the PSC were an independent statutory investigatory authority operating at arm’s length from Victoria Police and one which would mask the identity of a complainant from the subject police officer.
It is clear that his Honour did not identify the PSC as a ‘separate’ investigative body. Accordingly, we would reject ground 4.
The application for a ‘protective costs order’ was not pursued
As noted above, initially the applicant also sought a protective costs order pursuant to s 65C(2)(d) of the Civil Procedure Act 2010 to cap his liability to pay the costs of and incidental to an appeal. At the hearing, however, counsel for the applicant stated that he no longer sought such an order. Accordingly, it is not necessary for us to deal further with it.
Conclusion and orders
In the result, we shall grant leave to appeal, treat the appeal as instituted and heard instanter and allowed, and set aside orders 8 and 10 below. The matter will be remitted to his Honour for re-consideration according to law.
- - -
10
11
0